Edwards v Queensland Police Service [2021] QDC 88

DISTRICT COURT OF QUEENSLAND CITATION: Edwards v Queensland Police Service [2021] QDC 88 PARTIES: AARON LEIGH EDWARDS (Appellant) v QUEENSLAND POLICE SERVICE (Respondent) FILE NO: 40 of 2021 DIVISION: Appellate PROCEEDING: Appeal pursuant to s 222 Justices Act 1886 ORIGINATING COURT: Magistrates Court at Townsville DELIVERED ON: 26 May 2021 DELIVERED AT: Townsville HEARING DATE: 19 May 2021 JUDGE: Coker DCJ ORDER: 1. Appeal allowed 2. Set aside the sentence imposed on 9 March 2021 3. In substitution, the Appellant is convicted and in respect of the charge of assault occasioning bodily harm whilst armed in company, is sentenced to 18 months imprisonment with a parole release date fixed at 19 May 2021. 4. Otherwise, the penalty in respect of the charge of wilful damage is confirmed though subject to the parole release date of 19 May 2021. 5. Any submissions as to costs by the Appellant are to be filed within 28 days and any submissions by the Respondent are to be filed within 14 days of receipt. 6. I declare that 132 days is pre-sentence custody from 6 January 2021 to 18 May 2021 be declared as time already served. CATCHWORDS: CRIMINAL LAW – APPEAL AGAINST SENTENCE – Section 222 Justices Act 1886 – Whether sentence was manifestly excessive – where Appellant pleaded guilty to 1 count of wilful damage and 1 count of assault occasioning bodily harm whilst armed and in company – where the Appellant was sentenced to 2 ½ years’ imprisonment for the -- 1 of 21 -- 2 count of assault occasioning bodily harm whilst armed and in company – where a lesser concurrent sentence was imposed in respect of the count of wilful damage – where a parole release date was fixed at the 1/3 mark – where the appellant had specific physical injuries requiring ongoing physiotherapy and pain medication – where background event were said to have affected the Appellant’s actions towards the complainant – whether the sentence in all the circumstances was manifestly excessive. LEGISLATION: Justices Act 1886, s 224 CASES: Craig v OPS [2014] QDC 50 Dinsdale v the Queen [2000] HCA 54; [2000] 202 CLR 32 House v The King (1936) 55 CLR 499 Lowe v The Queen (1984) 154 CLR 606 R v Hilton [2009] QCA 12 R v Ikin [2007] QCA 224 R v Lomass (1981) 5 A Crim R 230, [1923] St R Qd 278 R v Morse (1979) 23 SASR 98 Rongo v Commissioner of Police [2017] QDC 258 Ross v Commissioner of Police [2018] QDC 99 COUNSEL: A. Gaden for the Respondent R. Scholl for the Applicant SOLICITORS: Office of the Director of Public Prosecutions for the Respondent Lee Turnbull & Co Solicitors for the Applicant Introduction [1] This is an appeal against sentence. The appellant is Aaron Leigh Edwards whom I shall hereinafter refer to as the Appellant. He was convicted on his own plea in the Magistrates Court at Townsville on the 9th of March 2021. He pleaded guilty to two counts. The first, a charge of wilful damage and the second, a charge of assault occasioning bodily harm whilst armed in company. The maximum penalty in relation to the more serious of those offences, assault occasioning bodily harm whilst armed in company is 10 years’ imprisonment. The maximum penalty in relation to the lesser charge of wilful damage is five years. -- 2 of 21 -- 3 [2] After hearing sentencing submissions in relation to this matter, the magistrate presiding, Magistrate Mack imposed in relation to the more serious offending, assault occasioning bodily harm whilst armed and in company, a period of imprisonment of two and a-half years with a parole release date fixed at the 5 th of November 2021. That reflected a requirement for the appellant to serve one third of the time imposed, in relation to the more serious offending. [3] In respect of the charge of wilful damage, he was convicted and sentenced to three months’ imprisonment to be served concurrent with the head sentence. A declaration was made appropriately in respect of this matter, relating to a period of 62 days spent in pre-sentence custody from the 6 th of January 2021 to the 8 th of March 2021. [4] The appeal by the appellant was filed on the date of sentence, the 9 th of March 2021. The grounds of appeal were extensive and were in these terms: a) The sentence imposed is excessive; b) The learned Magistrate erred in setting a parole release date at the 1/3 mark and did not place adequate weight on the submissions by the Appellant for an immediate parole release date; c) The learned Magistrate failed to place adequate weight on the Appellant’s level of remorse, mitigation and co-operation outlined in the psychological report; d) The learned Magistrate failed to take into account the mental condition outlined by the psychologist as a result of sexual assault on his partner by the victim; e) The learned Magistrate failed to place adequate weight on the Appellant’s medical requirements and their inability to be met in prison; f) The learned Magistrate placed excessive weight on deterrent and denunciation and inadequate weight on rehabilitation taking into account the material tendered by the Appellant; g) The learned Magistrate failed to place adequate weight on the references tendered when determining the character of the Appellant and too much weight on his criminal history; and h) The learned Magistrate erred in failing to place any weight on the authority of Craig v OPS [2014] QDC 50 tendered by the Appellant. [5] The focus of the appeal however, related specifically to the argument as to whether the period of imprisonment imposed was manifestly excessive. All of the grounds -- 3 of 21 -- 4 detailed in the appeal relate to that fundamental position taken in relation to the proceedings. [6] At the time of sentencing, the learned magistrate was provided with a two-page sentencing schedule. I shall come to the matters detailed in the sentencing schedule in a few moments, however, it should also be noted that tendered to the magistrate was a copy of the appellant’s four-page criminal history, some photographs of the injuries sustained by the complainant as a result of the assault occasioning bodily harm whilst armed in company, a pre-sentence custody certificate, as well as a statement from a senior medical officer. Then on behalf of the appellant, there was tendered a report under the hand of a Dr Saxby, and a psychological report under the hand of Ms Manya Scheftsik. Also tendered were two references and they were under the hand of a Peter Henwood and a Casey Creed. [7] The statement as to the offending was detailed in the sentencing schedule. The sentencing schedule included information in respect of both of the offences. The first relating to wilful damage of property noted that there were two witnesses to the offending, a Samuel Walker and a Ngaire Von Senden. Both of those persons are relevant in relation to the second offence as well. The schedule noted in relation to that offending the following: “At approximately 10.30 am on the 2nd of January 2021, the defendant has attended 2 Lae Street, Mount Isa with his partner Ngaire Von Senden. Von Senden has approached the front door and spoken with Samuel Walker. At this time, the defendant has approached the victim’s vehicle…” [8] I note the victim here is the same as the complainant in the second count, assault occasioning bodily harm whilst armed in company – Rowland Arnold Crayford. “…a white coloured Nissan Navara which was parked in the driveway. The defendant has punched the rear tray door, causing a dent. The defendant and Von Senden have then left.” [9] On the 6th of January 2021, the defendant attended Mount Isa Police Station and participated in an electronic record of interview, during this, the defendant stated that he attended the address with “Killa” Major and Von Senden because Walker had been -- 4 of 21 -- 5 sending Von Senden and himself threatening messages wanting to fight him. He stated that when he attended the address, he was calling out to Walker whilst standing on the lip of the tray, jumping up and down. He believes the dent may have been caused by his knee while he was jumping. Police arrested the defendant and denied bail to appear in the Mount Isa Magistrates Court on the 7th of January 2021. [10] In relation to the second of the offences, assault occasioning bodily harm whilst armed in company, which offence is said to have occurred on the 5th of January 2021, the complainant and victim is again, Rowland Arnold Crayford, and the co-offenders, the persons with whom the appellant was in company, are Ngaire Jane Von Senden and Terrence John Von Senden. The schedule of facts notes the particulars as follows: “At approximately 8.40 pm on the 5th of January 2021, the defendant and co- offenders entered the dwelling of 98 East Street, Mount Isa via the locked – via the unlocked front pedestrian gate. The defendant proceeded into the backyard armed with a baseball bat whilst the co-offenders stayed standing right inside the pedestrian gate. The victim heard the gate open and walked to the front of the yard. At this time, the defendant saw the victim and ran to the victim, holding the baseball bat. The defendant hit the victim with the baseball bat on the side of the head twice and back of the head once, causing the victim pain. The defendant then hit the victim two or three times on his left knee, causing the victim to hit the ground. During this assault, the defendant has yelled words to the effect of, “I told you, I was going to fucking get you”. Once the victim hit the ground, a co-offender has yelled, “That is enough, that is enough”. The defendant and co-offenders left the dwelling via the front pedestrian gate. At approximately 8.40 pm, Queensland Ambulance Service arrived and attended to the victim, placing him in the ambulance. Shortly after, police arrived and observed large amounts of blood on the footpath, road, and throughout the ground floor of 98 East Street, Mount Isa. The victim was transported to Mount Isa Base Hospital. -- 5 of 21 -- 6 On the 6th of January 2021, police attended the hospital and took up with the victim who had multiple stitches to two parts of his head and a fractured patella. The full extent of his injuries were unknown at this stage. The victim provided a statement to police in which he names and identifies the defendant and co-offenders as he knows each of them. The victim further states that the assault is retribution for another matter in which the victim is the defendant and the co-offender, Ngaire Von Senden as the victim. On the 6 th of January 2021, police executed a search warrant on 6 Short Street, Mount Isa, the residence of the defendant and co-offenders. A metal baseball bat was seized. Shortly after, the defendant has attended Mount Isa Police Station and participated in an electronic record of interview. During this, the defendant stated that he was at 6 Short Street, Mount Isa, drinking alcohol with the co- offenders on the night of the 5th of January 2021. The defendant then drove the co-offenders in a white Toyota Kluger to the Overlander Hotel, 55 Barkly Highway, Mount Isa, at an unknown time. The defendant then states he drove the co-offenders back to 6 Short Street, Mount Isa at an unknown time and that on the way home, he has dropped one of the co-offenders off near Buchanan Park, Mount Isa. The defendant denies assaulting the victim or attending his house on the 5th of January 2021 and subsequently has not raised any defences. Police arrested the defendant and denied bail to appear at the Mount Isa Magistrates Court on the 7th of January 2021.” [11] Following the provision of the sentencing schedule, various submissions were then made by the Prosecutor, Sergeant Moran. Sergeant Moran, after addressing those matters detailed in the sentenced schedule, made reference to a number of the other exhibits that were tendered, in particular, he refers to the photographs taken at the hospital and to the extent of the injuries as identified in the report under the hand of Dr Julia De Boos. Dr De Boos indicated that it was not her who conducted the actual examination and provision of treatment to the complainant, but rather that was -- 6 of 21 -- 7 attended to by doctors Jorma Mueller and Bronte Donaldson. However, the clinical notes provided information which were detailed and referred to by the Prosecutor. [12] They noted a decreased level of consciousness, intoxication with alcohol, three areas of bruising to the right side of the front of the chest, tenderness to palpitation, and swelling over the left kneecap, as well as a five-centimetre-deep laceration to the side of the head which was bleeding profusely with arterial bleeding noted, and an eight- centimetre-deep laceration to the back of the head. The Prosecutor also noted X-rays having been taken, which showed a fracture to the kneecap. [13] After detailing those particular matters, the Prosecutor then went on to address the magistrate in respect of the nature of the assault, and in particular, as to the extent of it being so significant that there was no other sentence other than the possibility of actual imprisonment. Reference was made then to a number of cases, including R v Hilton [2009] QCA 12, and the Prosecutor went on to provide a significant commentary in relation to the circumstances of the offending in Hilton’s case, as well as to the terms of the decision. [14] A significant amount was made by the Prosecutor, of the fact that a weapon was used and that there was a degree of animosity between the complainant and the appellant in that matter. Noteworthy in particular, was the fact that the evidence seemed to show that the appellant had kicked the complainant in that matter, in the head three or four times, and continued his assault after the victim had been rendered unconscious. Details of that appellant’s criminal history, etcetera, were then addressed, as well as his antecedents. In particular, it was noted as is the case here, that references were tendered at the sentence hearing that attested to the applicant’s otherwise good character and the difficulties that would be experienced not only by the appellant in that matter, but also by others dependent upon him including his elderly mother and a dependent eight year old child. There was also then reference to the sentence of 18 months with a requirement that the appellant be obliged to serve six months in custody, and reference specifically to the comments contained in Hilton at paragraph 22 where Justice of Appeal Keane, (as he then was), noted: “Offences involving personal violence raise consideration of general and personal deterrence which may warrant a custodial sentence even for a first -- 7 of 21 -- 8 offence. The applicant’s record of previous assaults suggests that the need for personal deterrence is a consideration of concern in this case.” [15] The Prosecutor does not go on to comment upon the balance of paragraph 22 of the decision, however, it seems that there is some relevance in making reference to the balance. It is in these terms: “In the present case, the applicant’s assault on the complainant was quite unprovoked; the complainant did not want to fight the applicant, but the applicant persisted in his pursuit of a grudge. While the Courts are slow to send an offender to prison for a short time where the offender has not previously been sentenced to actual imprisonment, considerations of general and personal deterrence will, generally speaking, overcome that reluctance in the case of a mature offender. That this offence, involving as it did persistent personal violence by a mature adult, should be punished by a sentence involving actual custody is hardly surprising.” [16] I make reference specifically to those additional words, because there are some matters that arise in relation to this case, which distinguish it from that more general statement as to the situation that exists in the case under appeal here. There is reference to the appellant’s pursuit of the complainant in Hilton, as a result of a grudge held, but the reference to the fact that the assault on the complainant was quite unprovoked is not reflective of the circumstances in this appeal. I shall come to this a little later in these reasons. [17] At the conclusion of an exchange in relation to the nature of the offending, particularly regarding the striking of the complainant’s knee by the appellant here, the Prosecutor then made a submission on penalty where he said at page 11 of the transcript: “Submission on penalty, your Honour, is that the sentence is at least firmly set at the 18-month mark, to serve six months actual imprisonment.” [18] Thereafter, there is an exchange between the bench and the Prosecutor in relation to whether or not the offending is more serious than in the case of Hilton. It is noteworthy there that it is the learned magistrate who makes the comment, “this is -- 8 of 21 -- 9 more serious than Hilton? Sets in at 18 months?” Thereafter, the learned magistrate then says: “Anyway, so if that is your submission, that is your submission. Yes, Mr Scholl. I do not want you to take any comfort from that submission.” [19] Thereafter, the solicitor for the appellant indicates that he does not take comfort from that submission, at least insofar as the nature of the penalty to be imposed, but goes on specifically to say to the magistrate, the following: “But what I am saying is that the facts do not reflect the entire background of this particular…” [20] To which the magistrate’s reply is: “no, this is where you come in.” [21] Thereafter, the solicitor for the appellant commences his submissions in relation to what he submits are matters that distinguish these proceedings and the circumstances relating to them, from the case of Hilton. In particular, it is noted that there is the allegation and in fact, as I understand it, a charge made with regard to the complainant in this matter being the defendant in respect of an alleged sexual assault upon the appellant’s partner, Ngaire Van Senden. There is also reference to what are said to be threats made by Mr Walker, a friend of the complainant, by way of text directed to both the defendant and Ms Van Senden, and those texts were subsequently exhibited in the proceedings. [22] Thereafter, there is a further exchange between the appellant’s solicitor and the bench about the tendering of those texts, when it would appear that there had been agreement between prosecution and Defence of the existence of the texts and it was not contested. The magistrate’s position, however, was to say: “If you want to rely on it, you show me the texts.” [23] The opportunity was then provided, though the submissions continued. In particular, those submissions addressed the nature of alleged threats or provocation at least directed toward the defendant by the complainant’s friend, Mr Walker, though the -- 9 of 21 -- 10 magistrate was quick to note that the exchange of texts in that sense was not something that provided mitigation, to which the solicitor for the appellant noted that it was more to the extent of fleshing out the circumstances of the offending. [24] Thereafter, Mr Scholl for the appellant provided significant information with regard to the appellant’s antecedents, including his work history and information specifically relating to both physical and psychological matters. There is emphasis particularly upon the physical situation relating to an ankle injury which had resulted in a permanent injury which had affected the appellant’s capacity to work, and there were concerns as to ongoing treatment required. [25] The psychological report of Ms Scheftsik was also referred to specifically, in relation to the nature of the appellant’s psychological circumstances after providing significant information relating to the current social circumstances and relevant history of the appellant, as well as an assessment of the appellant’s psychological and psychiatric state. Ms Scheftsik opined that the appellant was suffering and continued to suffer from a chronic mental health condition, major depressive disorder. She opined that he committed the offences whilst the subject of that and further suggested that the appellant had developed acute stress disorder which emerged as a consequence of the sexual assault that is said to have been perpetrated upon his partner, Ms Von Senden by the complainant, Mr Crayford. Ms Scheftsik notes that: “His behaviour meets the diagnostic criteria as he had exposure to sexual violation by learning from Ms Von Senden that she had been sexually assaulted by Mr Crayford which caused him to experience intense psychological distress, along with a range of unpleasant and difficult to manage symptoms that occurred immediately after the trauma.” [26] Such matters were relied upon specifically by the solicitor for the appellant, as explaining the nature of his reaction at the time, though not seeking to use it as justification for such actions. However, as was noted by Ms Scheftsik, the appellant “felt ashamed of his behaviour towards Mr Crayford, for his impulsivity and for having lost control”. He acknowledged also, that he should have left the matter in the hands of the police, with his partner to make an appropriate complaint about the -- 10 of 21 -- 11 sexual assault perpetrated upon her, and he was mindful of the consequences for his partner and their son, as a result of his actions. [27] Ms Scheftsik also described the appellant’s remorse for the offending and submitted that it appeared to be genuine remorse, noting at paragraph 22 as follows: “Mr Edwards reiterated his disappointment in his own conduct towards Mr Crayford. He avowed feeling remorseful and ‘…sickened…’ afterwards. Mr Edwards told me he has a family, and he wants to be there for them as his main priority. He realised that he had acted against the best interests of his family by being impulsive, as now on remand, he can do little to protect them or care for them. Mr Edwards avowed feeling remorseful, saying, “…nobody deserves that…” as regard his behaviour towards Mr Crayford.” [28] Ms Scheftsik also notes that in her professional opinion, there is a low risk of reoffending on the part of Mr Edwards and details a number of reasons for that assessment. In her final comments under the heading, opinion, she notes as follows, from paragraphs 29 through 31, the following: “[29] It is reasonable to assert that Mr Edwards’ offending behaviour is causally related to acute stress disorder which in turn emerged as a consequence of the trauma he experienced as a result of the sexual assault of Ms Von Senden by Mr Crayford. [30] It is unlikely that the major depressive disorder suffered by Mr Edwards would have put him at risk of committing the offences that occurred on the 5th of January 2021. I stated in the first point, under the heading of recidivism that Mr Edwards has not previously committed similar offences. It is my professional opinion that historical absence of similar offences supports my assertion that major depressive disorder is unlikely to be casually related to Mr Edwards’ offending behaviour. [31] Mr Edwards, as well as Ms Von Senden experienced the exceptional humiliation that is associated with sexual assault. Ms Von Senden told me that Mr Crayford had ruined their lives. This is not an exaggeration of the impact and suffering caused by the humiliation of sexual assault on the individual and -- 11 of 21 -- 12 on families. I am hoping that with appropriate treatment and the passage of time that their relationship will recover and that they will be able to remain together as a family.” [29] Such statements by Ms Scheftsik clearly allude to the pre-existing conditions as well as the immediate effects of the alleged offending by the complainant, in relation to the appellant’s partner, Ms Von Senden. Mr Scholl was at pains to rely, as he said, “significantly upon the psychological report, with respect to the matter”. [30] In an exchange with the bench thereafter, Mr Scholl emphasised the report’s finding of substantial remorse, to which the learned magistrate replied, “not immediately apparent, when he denied any involvement.” Mr Scholl sought to explain that initial reaction, indicating that once the opportunity had sunk in, in the matter, that the appellant accepted the wrongness of his actions and noted then that it was out of character for him on the basis that he had no previous history of violence. Again, the learned magistrate engaged in an exchange with Mr Scholl, relating to the fact that there is however, a criminal history in existence and referred to it as a “significant history”. [31] Mr Scholl emphasised that there was nothing significant really, since 1998, with the exclusion of domestic violence matters and breaches of various orders but emphasised that these were of limited consequence and certainly, did not constitute violence in any way similar to that which was the subject of the present charges. [32] Following that information being provided, and as I understand it, an opportunity taken by the learned magistrate to consider the psychological report and the medical evidence relating to the injury to the appellant’s ankle, further submissions were made as to the need for ongoing treatment, physiotherapy, and as indicated by Mr Scholl, “extensive rehabilitation in relation to his ankle injury, if it is to avoid further surgical intervention”. [33] Mr Scholl then specifically set out to provide information with regard to the difficulties with regard to treatment, particularly in respect of physiotherapy at the prison. Similarly, that there were delays in relation to other medical treatment in prison. Mr Scholl specifically submitted to the magistrate that there was a concern -- 12 of 21 -- 13 that if treatment as indicated as being necessary was not provided, that there would be an aggravation of the existing injury. [34] He ultimately, submitted that whilst a significant penalty should be imposed, noting that the appellant had at that time spent two months in pre-sentence custody, that he should be released on immediate parole. When the matter was stood down at a little after noon on the 9th of September 2021, the learned magistrate indicated that he would read the report and that the matter would resume at 2.30 pm. When the matter resumed, the text messages to which I had previously made reference were tendered to the magistrate and thereafter, the decision was taken. [35] Before turning to the comments contained within that decision, however, it should be noted that the report of the orthopaedic surgeon, Dr Terence Saxby was also tendered to the Court. That report is dated the 4 th of January 2021 and was prepared in relation to a Workers Compensation claim. It does not therefore, relate directly to the direct effects that might arise from a period of incarceration, but it does provide some additional information. In particular under the heading, opinion and specifically, relating to specific questions which had been asked, Dr Saxby notes under the question, “your clinical findings, diagnosis and prognosis” the following: • Mild restriction of ankle motion and mild restriction in hind foot motion.” • The diagnosis is right ankle lateral ligament injury, associated with a peroneal brevis tear, treated surgically and complicated by a post-op wound infection requiring antibiotics and further surgery.” • The prognosis is fair in that I don’t believe the condition is likely to significantly improve or deteriorate in the future. [36] Dr Saxby then notes that the symptoms that are suffered by the appellant include ongoing pain and an inability to walk on uneven ground, and an ongoing need for analgesia. More particularly, in relation to the question relating to future treatment, Dr Saxby notes: “I believe ongoing physiotherapy, or an exercise programme is required to increase muscle strengthening. At this stage, I would not personally recommend further surgery, and, based on my clinical examination, his ankle does seem -- 13 of 21 -- 14 stable and there does appear to be good power of eversion (peroneal tendon). Given the previous history of a significant infection post-operatively, I personally would avoid further intervention due to the risk of recurrent infection. The ankle is functioning reasonably well, even with further surgery, I do not believe there is likely to be any significant improvement of function. Therefore, I would recommend ongoing physiotherapy, medication, and to gradually try to increase his activities. [37] This is significant in relation to the penalty that was imposed, noting as I do, that the only comment apparently attributable to those physical and psychological matters are detailed in the sentencing remarks of the learned magistrate at page 2 of those sentencing remarks from lines 30 to 39. There, his Honour says: “As far as your personal circumstances, you are a 46 year old man with a four- page criminal history dating back to 1990. There are entries for offences of dishonesty, drugs, and breaches of domestic violence orders. I have been provided with a medical report regarding the injury to your ankle and the subsequent complications arising from that injury. The psychological report from Ms Scheftsik speaks of remorse on your account and suggests that you were suffering from a major depressive disorder as a consequence of an assault on your partner, Ms Van Senden, by the complainant. Notwithstanding this diagnosis, she confirms that you were aware that you should not have embarked on the assault and that the police should have been left to deal with the complaint. [38] Thereafter, His Honour with respect, seems to emphasise factors relating to the offending, rather than to, in a more balanced structure, consider matters with regard to the nature of the circumstances, both physical and emotional that relate specifically to the appellant, and makes reference in a passing way to the taunting texts said to have been sent by Mr Walker to the defendant and Ms Von Senden. [39] His Honour notes that Mr Walker was not at the residence where the assault upon the complainant occurred, though it does appear clear that it was the appellant’s evidence and it was unchallenged, that he had gone to confront Mr Walker and had simply found Mr Crayford in attendance. Thereafter, the learned magistrate also makes -- 14 of 21 -- 15 passing reference to the testimonials under the hand of Mr Creed and Mr Henwood but says that the criminal history prevented him from considering that the appellant was a man of good character. [40] He notes also that the appellant had not been sentenced to a term of imprisonment since 1998 and makes reference to the deleterious effect that might then flow in relation to the appellant’s family. It seems unfortunately, that the Magistrate did not give any credit to the fact that some 23 years have passed since the last offending by the appellant which had given rise to any period of imprisonment. Of course, that period of imprisonment was imposed in relation to an offence of possession of dangerous drugs, and probation was then put in place. [41] For 23 years, there was no further periods of imprisonment imposed and it seems that whilst there had been a continuing history of offending of a limited nature, it had been visited with fines of quite small compass. Notwithstanding that, however, the learned Magistrate was of the view that there was not a proper basis upon which it could be suggested that he was of good character. [42] The learned Magistrate then went on to speak of the various considerations in relation to any sentence that might be imposed, including considerations as to punishment, in an appropriate way, so as to reflect the circumstances of the offending, as well as to assist with rehabilitation and deterrence. His Honour noted that in his view, the priority should be deterrence and denunciation, both personal and general. But it does seem that there was no indication by the learned Magistrate as to how that was to be effected in light of both physical and perhaps more significantly, emotional and psychological considerations as might reduce the benefit on a general deterrence basis of any penalty imposed in this matter. [43] After making comment about the various cases to which he was referred and the distinctions that he drew in relation to them, he sentenced the appellant to a two and a-half year period of imprisonment. As I noted previously however, both the Crown and the Defence had submitted that the appropriate penalty was in the vicinity of 18 months. Whilst his Honour made that passing comment to Defence that Mr Scholl should not take any comfort from that submission, it is also abundantly clear that no -- 15 of 21 -- 16 further indication was given by the magistrate of his intention to impose a sentence significantly greater than that proposed by either the prosecution or the Defence. [44] It is important, in my view, that there should have been an extensive recitation of the circumstances in relation to this matter, because of the necessary considerations that then flow in relation to the conduct of an appeal. In relation to an application such as this, it is necessary to consider the basis upon which the appeal is made. [45] This appeal is an appeal against sentence. The right to appeal is a creature of statute, with the nature of the appeal right dependent on the construction of the statute concerned. It should particularly be noted that, as is the case here, where a person pleads guilty or admits the truth of a complaint, a person may only appeal under section 222(2)(c) of the Justices Act on the sole ground that a fine, penalty, forfeiture or punishment was excessive or inadequate. The appeal is then dealt with by way of rehearing on the original evidence given in proceeding before the magistrate, and in the circumstances, the court has the power to confirm, set aside or vary the order of the magistrate. [46] It is the sole ground of appeal relied upon here, and it is suggested by the appellant, that the sentence was manifestly excessive. In order for a sentence to be “excessive” it must be “beyond the acceptable”. It must be, as has often been said, “beyond the acceptable scope of judicial discretion” or “so outside the appropriate range as to demonstrate inconsistency and unfairness”. In that regard, I am mindful of the decisions in R v Morse (1979) 23 SASR 98, R v Lomass (1981) 5 A Crim R 230, [1923] St R Qd 278, and Lowe v The Queen (1984) 154 CLR 606. [47] In commenting upon appeals relating to sentences, whether they be manifestly excessive or inadequate, I refer to the recent decision of her Honour Judge Muir in Ross v Commissioner of Police [2018] QDC 99. There, Her Honour, when commenting upon the exercise of an appellant judge, noted at paragraph 8: … it is not a sufficient basis for this court to intervene, that this court considers it might have taken a different course between the competing considerations which have to be weighed in the exercise of the discretion. It must appear that some error has been made in exercising the discretion of the kind identified in House v The King (1936) 55 CLR 499. If the Magistrate acted upon a wrong principle, if he allowed -- 16 of 21 -- 17 extraneous or irrelevant matters to guide or affect him, if he made a mistake about the facts, if he did not take into account some material consideration, then the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. [48] There, Her Honour has eloquently expressed the very real need for there to be, not a simple substitution of one view for another, but a proper exercise of the appeal power and a recognition that a difference of opinion or view is not, of itself, simply a basis upon which an appeal should be upheld. [49] Her Honour made particular reference in her reasons to the decision of Keane JA (as he then was) in the R v Ikin [2007] QCA 224, where his Honour noted as follows: The judgment appealed from is a discretionary one. An appeal can succeed only if an error of the kind described in House v The King (1936) 55 CLR 499 at 504 - 505 has occurred. [50] In this regard, there may be cases where the sentence is so “unreasonable or plainly unjust” in the circumstances as to give rise to an inference that the discretion has miscarried. It is this idea which informs the familiar ground of appeal that a sentence is manifestly excessive. But that having been said, as was emphasised by Kirby J in Dinsdale v the Queen [2000] HCA 54; [2000] 202 CLR 321 at 341, this court should allow an appeal against sentence only where the error is clearly apparent. [51] Perhaps most succinct of all, His Honour Judge Devereaux SC (as he then was) of this Court, noted in Rongo v Commissioner of Police [2017] QDC 258 the following: It seems to me, then, that the focus in this and many appeals brought to this court on attempting to demonstrate an error in the exercise of the sentencing discretion is not misguided but slightly misplaced. The real question is whether the sentence was excessive, so that, although the appellant may argue that the magistrate made a certain error, the success of the appeal does not depend on persuading the appeal court on that point. [52] His Honour then goes on to note that: -- 17 of 21 -- 18 Identifying a particular error might assist because it might explain why the sentence was excessive. [53] The grounds of the appeal have been detailed by me already in relation to this matter. In submissions, the appellant through his legal representative contends that the sentence of two and a-half years’ imprisonment was far outside that which would have been an appropriate penalty to be imposed. [54] More particularly, it was contended that whilst the head sentence of two and a-half years was manifestly excessive, there was also argument as to whether the learned magistrate had erred in setting a parole release date at the one third mark, which would be the normal position in relation to a sentence to be imposed, reflecting a plea of guilty when there were a number of other considerations in respect of the circumstances of the appellant, including the tender of the orthopaedic surgeon’s report relating to the ongoing needs of a physical character, in relation to the appellant, as well as the reliance upon the psychological report, particularly with regard to remorse and to behaviour of this nature being outside the general character and behaviours of the appellant. It was also contended that the character references clearly showed the character of the appellant at this time and were not reflective of behaviours by the appellant many years before. [55] Arguments were then put forward as to the learned Magistrate’s failure to provide any or proper adequate reasons as to why the matters detailed, in both the psychological and physical reports provided, were rejected or given lesser weight than would be the case normally put, in relation to matters such as this. [56] The arguments put forward by the appellant in relation to his mental condition and the effects upon him as a result of the sexual assault upon his partner by the complainant, also were relied upon as a factor giving rise to concern, in that it was argued that the magistrate had failed to place adequate or any weight upon the effect of the unlawful conduct of the complainant upon him when it was alleged that there had been a sexual assault upon the appellant’s partner. [57] Most significant, at least at the time of the appeal, however, were questions in relation to ground e which related to whether or not the learned Magistrate had placed adequate weight on the appellant’s medical requirements and the inability to have -- 18 of 21 -- 19 those met at the prison. Leave was given for further evidence to be relied upon in relation to that matter, and I found the evidence of the defendant to be significant in that regard. In particular, it was clear that the concerns that had properly been expressed by the appellant in relation to the availability of treatment, both physiotherapy and pain relief had not been able to be provided at the jail. [58] Whilst it was contended by the respondent that there was little corroboration, there was certainly nothing that would suggest that there were not ongoing difficulties as had been identified by the appellant through his legal representatives during the sentencing process. There was, in my assessment, a real need and obligation for the learned magistrate to take that into consideration, in relation to the penalty to be imposed and if not considered by him to be significant and sufficient in relation to any mitigation in sentence, to clearly and properly indicate why that was the case. [59] The appellant in the affidavit dated the 11th of May 2021 provided evidence that physiotherapy was not made available to him and that as a result of that and a lack of medical assistance, the ankle injury had worsened. He gave evidence that he was in constant pain, that his ankle had now turned inwards and that there were difficulties with him walking, and that the ankle on occasions, gave way. He spoke of the difficulties in obtaining adequate pain relief, and whilst unable to have any documentary corroboration as to requests for a medical intervention and perhaps the prescription of further and better pain relief, I found the appellant’s evidence compelling in that regard. [60] It was also, in my view, not evidence which was able to be disclosed at the time of the original sentence, but clearly was evidence of a lived experience subsequent to sentence, and simply reconfirmed and expanded upon the concerns that were expressed at the time of the actual sentencing. [61] Also argued on the part of the appellant was ground f, relating to a concern that the learned magistrate had placed excessive weight on deterrence and denunciation, and had failed to balance that or to have given inadequate weight to elements with regard to rehabilitation. It appears, with respect, clear that that was the emphasis placed by the learned Magistrate at the time of sentencing. His Honour specifically referred to his view that the priority should be deterrence and denunciation, without any -- 19 of 21 -- 20 explanation as to why it was not tempered with considerations relating to the needs for rehabilitation as well as the specific circumstances attaching to the appellant. [62] Thereafter, the appellant argued that whilst the offending was serious and that a period of imprisonment was the only appropriate penalty, the totality principle would see the Court impose a sentence that was not ultimately crushing upon the appellant and that when consideration were given to the circumstances specific to the appellant, that the penalty imposed was so outside the range as to be manifestly excessive. [63] The position of the respondent in relation to this matter was simply to say, that the sentence imposed was not manifestly excessive and that the sentencing magistrate had not fallen into error, as suggested by the appellant. It was further argued, understandably perhaps, that whilst it might have been the case that another judicial officer might have imposed a lesser sentence, that that in any way meant that the sentence imposed by the learned magistrate was manifestly excessive. [64] The respondent then submitted at length, that the sentencing magistrate had not fallen into error, and that any sentence imposed was not excessive, as in the circumstances of the case, the sentence was within the permissible or allowable range of sentences to be imposed, in cases such as this. Reference was made to the aggravating features, including that there were two occasions where offending occurred; that there was an act of what was described as vigilantism; that the assault was protracted in nature; that the appellant only desisted when an associate intervened, telling him that it was enough; the serious nature of the injuries that were sustained; as well as issues relating to the mature age of the appellant; his criminal history including prior convictions that indicate a lack of appreciation of the need to abide by the orders of the Court and not to offend; and a general reference to a lack of remorse indicated by the initial denial by the appellant of the assault or in fact, his involvement at all. [65] Thereafter, the respondent provided a lengthy outline in relation to the various bases upon which the appeal is grounded. It is noteworthy, that in relation to concerns expressed on the part of the appellant with regard to whether the learned magistrate had placed adequate weight upon factors in mitigation, that it was conceded, “that the magistrate did not expressly articulate… when assessing the appellant’s levels of remorse, mitigation, and cooperation that regard was had to the psychological report.” -- 20 of 21 -- 21 However, the respondent argued that the magistrate’s continued reference to the report and having regard to it was of some significance. As such, it was submitted that the learned Magistrate had appropriately taken into account the factors identified both against and in favour of the appellant when determining the appropriate penalty. [66] I cannot agree that that is apparent from the sentencing remarks of the Magistrate. Whilst there may have been inferentially some suggestions of that, it clearly falls as necessary, upon the learned Magistrate to indicate such issues and considerations in his sentencing remarks. In the submissions, it was also noted that there was acceptance of the fact that both the limbs of deterrence and denunciation were prominent considerations, but the respondent specifically submitted that there had been appropriate weight still given to prospects of rehabilitation and the like. Again, I cannot agree from the reading of the sentencing remarks, that there is any clear explanation provided, in relation to such matters. [67] As such, I am of the view that in all the circumstances, the imposition of the head sentence of two and a-half years was manifestly excessive, in that it was outside the range of what would have been appropriate in respect of this matter, noting particularly that the penalty imposed was greater than that which had been submitted as being appropriate by both the prosecution and the Defence. Further, that the sentence does not clearly provide any basis upon which it could be suggested that the learned Magistrate has balanced the considerations with regard to deterrence and denunciation with the particular considerations of rehabilitation, and in this particular instance, the specific considerations that arise with regard to both the physical and psychological circumstances of the appellant, such that the appeal should be upheld, and the orders of the Court will be as I have already indicated. -- 21 of 21 --